Notre Dame Law Review

Volume 47 | Issue 3 Article 1

2-1-1972

American Bar Association Standards for Criminal

Justice: Prescription for an Ailing System
Tom C. Clark

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Tom C. Clark, American Bar Association Standards for Criminal Justice: Prescription for an Ailing System, 47 Notre Dame L. Rev. 429
(1972).
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THE AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL
JUSTICE: PRESCRIPTION FOR AN AILING SYSTEM

Tom C. Clark*

All across the nation there are increasing signs of a ferment-a "happen-
ing"-for the improvement and modernization of the criminal justice system.
Many of the roots of this movement can be traced back to a major program of
the American Bar Association's Section of Criminal Law, begun in late 1968, to
implement the ABA Standards for Criminal Justice which are designed to
strengthen and improve the system. These Standards are the product of a
massive undertaking by the ABA, conceived in 1963, begun in 1964, and still
going on. Nothing like this had ever been attempted for the administration of
criminal law.
The Standards are suggested-rather than mandatory-guidelines for the
states as well as the federal jurisdictions. But the interest they are generating
and the momentum of the implementation activity clearly bespeak the timeliness
and quality of the product and the existing demand for practical solutions to
serious ailments besetting our system. Nor is this activity a mere passing fancy.
Rather, it has all the earmarks of a renaissance, a complete overhaul and mod-
ernization of systems, in some cases the exchange of a new model for something
beyond repair or which, like the famous "One-Hoss Shay," has seen its day.
The ABA Standards for Criminal Justice are providing the bench and bar
with a new set of textbooks on criminal procedure and some important sub-
stantive law. With increasing frequency, we are seeing these volumes cited in
lawyers' briefs, trial judges' rulings, and appellate opinions.' During the past
three years, scores of judicial conference and state bar educational programs have
devoted substantial time to explanations of the Standards and how their adoption
holds great promise for solving problems plaguing the administration of criminal
justice.
The real significance of the Criminal Law Section's efforts is that they
constitute one of the too few occasions when a major study has received as much
attention at the implementation end. This significance is further magnified
when we realize how many national commissions, state, local, and privately
funded studies there have been-all of which produced a wealth of valuable
findings and corrective recommendations-but little or no implementation.
There is no special magic in these Standards which accounts for the imple-
mentation attention. Rather, they fall into that happy circumstance of being
something which happens to be the right thing at the right time. The Standards
were born in a climate of deep concern over the burgeoning problems of crime
and the correlative crisis in our courts occasioned by overwhelming caseloads,
recidivism, and a seeming incapacity of the system to respond to the challenges
of the Sixties.
* Associate Justice of the United States Supreme Court, Retired.
I See, i.e., Kirshen, Appellate Court Implementation of the Standards for the Adminis-
tration of Criminal Justice, 8 AMER. Cnmx'. LAw Q. 105 (1970).
 NOTRE DAME LAWYER [February, 1972]

In August, 1963, the Institute of Judicial Administration submitted a

proposal to the American Bar Association's Sections of Criminal Law and
Judicial Administration. It cited the great beneficial influence which had
resulted from a project 25 years earlier, the brainchild of the late Arthur T.
Vanderbilt, founder of the Institute, who, with the late Judge John J. Parker,
pioneered formulation of Minimum Standards of Judicial Administration, so
influential in reforming procedures for civil litigation.2
The American Bar Association agreed that the time was ripe for a com-
parable set of "Minimum Standards" for criminal justice. At the ABA midyear
meeting in February, 1964, the Board of Governors authorized the Sections of
Criminal Law and Judicial Administration to undertake a pilot study, chaired
by Chief Judge J. Edward Lumbard of the United States Court of Appeals for
the Second Circuit.' It is significant to note his statement in the pilot study
report which led to ABA approval of the major Standards project:

Standards for criminal justice are, particularly at this time, among the most
rapidly developing in our system, largely as a result of significant decisions
by the Supreme Court and other courts during the past few years. Vast
changes are resulting from decisions regarding indigent defendants, search
and seizure, privilege against self-incrimination, interrogation without
counsel being present, and post-conviction remedies. A number of Supreme
Court decisions have reversed Standards which the Court had reaffirmed
only "yesterday," as time is usually measured in the effect of stare decisis.
While this report was in the course of preparation, such a change was
made regarding rights of a citizen under the Fifth Amendment vis-a-vis
state authorities, the right of a suspect under interrogation to counsel or
to be advised of his constitutional rights and the method for determining
whether a confession was voluntary or coerced. National standards have
thus been created, and new problems raised, overnight.
As a matter which touches everyone and which, as some say, determines
the quality of our civilization, criminal justice evokes public concern as to
the standards evolved for its administration to an extent which is not
usually found in other fields where lawyers may have primary responsibility
to the community. In addition to technical and professional questions, some
of the standards for criminal justice involve grave problems of public policy
which tend to generate heated controversy, sharp divisions in popular
opinion and an insistent demand for their solution. The development and
acceptance of standards for this subject, therefore, require considerable skill
and serious consideration of representative viewpoints. 4

At its annual meeting in August, 1964, the Association authorized creation of

the ABA Special Committee on Minimum Standards for the Administration of
Criminal Justice, specifically mandated to ". . . proceed to make such studies and
investigations as it deems necessary or desirable and to formulate and recom-
mend minimum standards for the administration of criminal justice, all with

2 PILOT STUDY COMMITTEE ON MINIMUM STANDARDS FOR CRIMINAL JUSTICE, JOINT

REPORT OF ABA SECTIONS OF CRIMINAL LAW AND JUDICIAL ADMINISTRATION 4-5;
see also
89 ABA Reports 421-22 (1964).
3 89 ABA Reports 422 (1964).
4 ABA Press Release, Dec. 29, 1964, Min. Stds. for Crim. Justice Project, pp. 1-2.
[Vol. 47: 429] STANDARDS FOR CRIMINAL JUSTICE

the view to improving the fairness, efficiency, and effectiveness of criminal justice
in state and federal courts . .. ".5
The project was intended to last three years and to cost $750,000. The
funding was raised by December, 1964, consisting of equal grants from the
American Bar Endowment, the Avalon Foundation and the Vincent Astor
Foundation.' Despite the tremendous dedication and persevering application to
the task by all participants, the formulation project is still going on, although it
appears likely the remaining Standards will receive final approval in August,
1972.
The eight-year duration also gives testimony to the enormity of the under-
taking, the volume, scope, and tempo of new and unforeseen developments in
the dynamic area of criminal justice, and finally, to the scholarly and high pro-
fessional quality of the Standards themselves. Chief Justice Warren E. Burger
characterized it as "perhaps the most ambitious single undertaking in the history
of that great organization" (i.e., the American Bar Association).' On an earlier
occasion, he stated:
S.. This project (referring to the ABA Standards) will I think in its own
time, emerge and take its place alongside the American Law Institute's
Restatements of the law-the creation of the Federal Rules of Civil
Procedure and the Federal Rules of Criminal Procedure, and other matters
of that rank."
Although the venture was initially called "The ABA Project on Minimum
Standards," it became clear the final Standards in many respects were more than
"mnimum"-hence, in August, 1969, that word was dropped.
Before looking at the Standards themselves, it will be meaningful to note
the makeup, personnel, and modus operandi of the project.
Judge Lumbard headed the ABA Special Committee which coordinated,
directed and guided the entire operation. He was succeeded in 1968 by then
United States Court of Appeals Judge Warren E. Burger who remained until
his confirmation as Chief Justice of the United States in 1969, when the chair-
manship passed to United States District Court Judge William J. Jameson, of
Montana, a former president of the ABA.
The ABA Special Committee was assisted by seven Advisory Committees,
set up according to functional areas, all comprised of a balanced blend of experts
-federal and state judges from the trial and appellate courts, prosecutors, public
defenders, private defense lawyers and general practitioners, law enforcement
professionals, law school deans and professors.'
5 89 ABA Reports 422 (1964).
6 INSTITUTE OF JUDICIAL ADMINISTRATION, AMERICAN BAR ASSOCIATION PROJECT ON
MINIMUM STANDARDS FOR CRIMINAL JUSTICE, April 12, 1966.
7 From a speech to the National Association of Attorneys General, Washington, D.C.,
February 6, 1970.
8 49 F.R.D. 347, 356 '(1969), from a speech at the 1969 Judicial Conference, U.S.
Court of Appeals, Tenth Circuit, on "Minimum Standards for Criminal Justice."
9 At first there were only six Advisory Committees, as follows: Police Function; Pretrial
Proceedings; Prosecution and Defense Functions; Criminal Trial; Sentencing and Review;
Fair Trial and Free Press. (For listing of members, see INSTITUTE OF JUDICIAL ADMINISTRA-
TION, AMERICAN BAR ASSOCIATION PROJECT ON MINIMUM STANDARDS FOR CRIMINAL JUS-
TICE, April 22, 1966.) Later in the project, a seventh Advisory Committee was added called
Judges' Function.
 NOTRE DAME LAWYER [February, 1972]

Apart from the balanced "mix" of experts who drafted the Standards, the
product derives high credibility from the screening and approval process. No
rubber stamps can be found here. To the contrary, each stage had to run a
severe gauntlet. The Advisory Committees drafted "black letter" proposed
standards, each supported by detailed commentary to document exhaustive
research, consideration of alternatives, and justify the standard selected.
After approval by the Special Committee, the work was widely circulated
in tentative draft form among some 12,000 members of the bench and bar,
including every member of the ABA Sections of Criminal Law and Judicial
Administration. Here the tentative draft underwent extensive debate, suggested
amendments and refinements. After consideration of these by the Advisory and
Special Committees, the tentative draft was finalized and submitted to the ABA
Board of Governors and House of Delegates. Following their approval-here
again, not without extensive debate and in some cases, amendments-the draft
was marked "Approved" and reprinted in booklet form, ready for nationwide
implementation by the Section of Criminal Law.
Seventeen individual volumes of Standards are contemplated, of which
fifteen have been published in approved form. They span the entire spectrum
of criminal
0
justice from the police function through final post-conviction
appeal.'
The Standards come to grips with many of the crucial problems plaguing
society and the system today-the weaknesses, ills, obsolescences, incongruities,
and inadequacies which beset the criminal justice process. Chief Justice Burger
aptly diagnosed the ailment thusly:

Today the American system of criminal justice in every phase-the police

10 The following is a listing of the titles of all Standards contemplated, together with the
date of House of Delegates' final approval of those completed:
APPELLATE REvIEW or SENTENCES, February, 1968
CRIMINAL APPEALS, August, 1970
DISCOVERY AND PROCEDURE BEFORE TRIAL, August, 1970
ELECTRONIC SURVEILLANCE, February, 1971
FAIR TRIAL AND FREE PRESS, February, 1968
(The implementation of this Standard is not the responsibility of the Section of
Criminal Law; rather, the Legal Advisory Committee on Fair Trial and Free
Press of the ABA Standing Committee on Public Relations.)
JOINDER AND SEVERANCE, August, 1968
PLEAS OF GUILTY, February, 1968
POST-CONVICTION REMEDIES, February, 1968
PRFTRIAL RELEASE, August, 1968
PROBATION, August, 1970
PROVIDING DEFENSE SERVICES, February, 1968
SENTENCING ALTERNATIVES AND PROCEDURES, August, 1968
SPEEDY TRIAL, February, 1968
THE PROSECUTION FUNCTION AND THE DEFENSE FUNCTION, February, 1971
TRIAL BY JURY, August, 1968
THE JUDGE'S ROLE IN DEALING wrrH TRIAL DISRUPTIONS, July, 1971
(This is the first segment of the contemplated ABA Standards Relating to the
Judges' Function.)
THE JUDoES' FUNCTION
THE POLICE FUNCTION
The ABA Standards are printed in individual volumes. They may be ordered from the
American Bar Association Circulation Department, American Bar Center, 1155 East 60th
Street, Chicago, Illinois 60637, telephone (312) 493-0533. Cost is $2 per volume, or $1 in
lots of 10 or more (whether the same or assorted titles).
[Vol. 47: 429] STANDARDS FOR CRIMINAL JUSTICE

function, the prosecution and defense, the courts and the correctional
machinery-is suffering from a severe case of deferred maintenance. . 21

President Richard M. Nixon, keynoting the National Conference of the

Judiciary at Williamsburg, Virginia, the expressed purpose of which was "to
improve the process of justice," cited these noteworthy symptoms:

. . . unconscionable delays in criminal cases; inconsistent and unfair bail

impositions; a steadily growing backlog of work that threatens to make the
delays worse tomorrow than they are today....
Overcrowded penal institutions; unremitting pressure on judges and pros-
ecutors to process cases by plea bargaining, without the safeguards recently
set forth by the American Bar Association; ...

... A system of criminal justice that can guarantee neither a speedy trial
nor a safe community cannot excuse its failure by pointing to an elaborate
system of safeguards for the accused. Justice dictates not only that the
innocent man go free, but that the guilty be punished for his crimes .... 12
(Emphasis supplied to denote reference to the ABA Standards Relating to
Pleas of Guilty.)

The ABA Standards are neither revolutionary nor novel. This must be
thoroughly understood in the important implementation process for there is an
inherent resistance against being the first by whom the new is tried. Equally
important, we should understand that the Standards are not a fixed set of
principles being handed down by the ABA as something sacrosanct "from on
high." Nor are they a federal creation to be viewed askance by state and local
jurisdictions-rather, they are intended for consideration by all.
In truth, the ABA Standards in most instances represent a distillation and
restatement of what is already the best practice and procedure in many jurisdic-
tions. They are a blend of clarification, simplification, unification, renovation,
and modernization of the whole system. There are suggested guidelines to be
applied to the administration of criminal justice in the fifty states and the federal
jurisdiction. The underlying objectives are: (1) to promote effective law
enforcement and the adequate protection of the public; and (2) to safeguard
and amplify the constitutional rights of those suspected of crime."
Chief Justice Burger, in speaking to the National Association of Attorneys
General, said:

It is probably fair to say that no one of the lawyers and judges who worked
on this project agrees completely with every Standard which has been
promulgated, but I think all of us agree that, taken as a whole, these
Standards can be used by the State and Federal systems to bring criminal
justice to a new level which is reasonable, workable, and what is more
important, fair. The Standards are not intended as a model code; but they
11 From a speech, entitled "Deferred Maintenance," delivered March 12, 1971, at the
National Conference on the Judiciary, Williamsburg, Virginia, reprinted in 57 A.B.AJ. 425-30
(1971).
12 Delivered March 11, 1971, reprinted in 57 A.B.A.J. 421-24 (1971).
13 89 ABA Reports 422 (1964).
 NOTRE DAME LAWYER (February, 1972]

supply a rich background of material from which sound and decent

procedures can be developed. Some States must establish such procedures
by legislation. In some, it may be done directly by rules promulgated by the
highest court. In others it may be done by a rule-making process which
involves the concurrence of the judicial branch and the legislative branch,
• with the judiciary having the initial responsibility for proposing rules of
procedures....

. . . properly used and applied, they hold promise of producing greater

improvements and more efficiency in the administration of criminal justice
than opinions of courts can possibly do. All the courts can do is fix bound-
aries-others must work out procedures within those limits. The American
Bar Association Standards will afford a concrete basis for working out the
needed procedures .... 14

How do the ABA Standards prescribe for the diagnosed ills with which we
are concerned? A few examples will provide the answer. But first we must
realize that the Standards are designed to "treat the whole man." By this, we
mean that they do not take the "aspirin for a headache" approach. They are
all interrelated-conceived as a group of components, each compatible with the
others, and all interdependent. For example, the ABA Standards Relating to
PretrialRelease suggest procedures for the judicial officer to prescribe conditions
of release for the accused tailored to his situation, rather than detaining him by
imposition of high money bail. But the effectiveness of this procedure is de-
pendent on a strong probation system to supervise the judge's orders.
The ABA Standards Relating to Providing Defense Services confront a
major problem which Chief Justice Burger articulated as follows:

...Very early, and this means four and a half to five years ago, we came
to a realization that the key to the administration of criminal justice was that
there must, in every case of serious consequence, be a counsel for the
prosecution, a counsel for the defense, and a judge. And we likened that to
a three-legged stool, or a tripod, of which you will be hearing more and
more as time goes on, and we concluded that the system cannot work
without all three. Like the stool or the tripod, if you can take one leg away
or weaken it, you impair the entire system.

• . . The whole purpose of evolving this concept of the three-legged stool,

the tripod, was that in the past it was the defendant who was not strong
enough because all too often he had no lawyer. The thrust of our reports,
as anyone will find upon reading them, is that it is the defense which must
be strengthened by having counsel.' s

These Standards do not advocate a public defender or any other specific

system. Rather, they provide for local option so long as there is provision for
competent counsel, professional independence, supporting services, reasonable
compensation, and other safeguards to make the system work.
The Standards Relating to Pretrial Release grapple with the explosive
14 From a speech to the National Association of Attorneys General, Washington, D.C.,
Februray 6, 1970.
15 49 F.R.D. 347, 358-59 (1969).
[Vol. 47: 429] STANDARDS FOR CRIMINAL JUSTICE

questions of preventive detention; whether the right to bail is a constitutional

guarantee; the relationship of the policies and practices of the money bail system
to the problems of the poor, the economic burdens of our prison detention system,
the evils of the professional bondsmen, the serious and increasingly threatening
problems of criminal recidivism and its back-breaking and morale-lowering
effects on our law enforcement. These Standards squarely address themselves to
and suggest positive answers to these and many related issues.
The Standards Relating to Pleas of Guilty are among the most important
because such an overwhelming majority of our criminal cases end short of trial
in a guilty plea. These Standards have been the most frequehfly cited with favor
in appellate decisions. They seek to remove the clouds of suspicion and stigma
which have enveloped "plea bargaining." The Standards openly recognize the
propriety and value of the practice but they formulate guidelines and safeguards
for bringing the negotiations into the open, subjecting them to systematic con-
trol; they require equal plea agreement opportunities for defendants occupying
similar positions; and, finally, they recommend use of the device only in cases
where the public interest and the effective administration of justice will thereby
be served. The guidelines cover all three legs of the stool-the prosecution, the
defense, and the trial judges.
The ABA Standards Relating to Speedy Trial do not deal with the actual
trial stage but rather with the vexing problem of accelerating the bringing of the
case to trial. They recommend adoption of law or court rules which will specifi-
cally define the maximum time which may elapse between the defendant's being
charged (or a comparable point in time) and his trial, subject to certain ex-
clusions in protecting both society and the accused. They provide the serious
sanction of absolute discharge of the defendant if the time yardstick is not met.
Certainly, these Standards constitute a bold challenge to the many jurisdictions
vulnerable to charges of long delays in bringing serious criminal cases to trial-
no matter what the causes.
Important as are the Standards Relating to Speedy Trial, we must not let
them overshadow and obscure those Relating to Discovery and ProcedureBefore
Trial. In an exposition of the subject before the 1969 Judicial Conference of the
United States Court of Appeals for the Tenth Circuit, Judge William H. Erick-
son summarized the development of discovery in England and the United States,
tracing the law through a series of U.S. Supreme Court decisions up to the
Federal Rules of Criminal Procedure. He ended on this note:

Moreover, the amendments to the Federal Rules are but a starting point,
when the Standards proposed by the American Bar Association are con-
sidered that pertain to Discovery and Procedure Before Trial .... :6

These Standards clearly proceed from the indisputable premise that the
administration of criminal justice is most harmonious with a quest for truth, and

16 From a speech at the 1969 Judicial Conference, U.S. Court of Appeals, Tenth Circuit,
on Minimum Standards for Criminal Justice, reported in 49 F.R.D. 347, 465-73. In 1971,
Mr. Erickson was appointed to the Supreme Court of Colorado and in July, 1971, he also
became Chairman of the ABA Section of Criminal Law.
 NOTRE DAME LAWYER [February, 1972]

any procedures which facilitate that quest, without impairing constitutional due
process, are laudable. Although our system properly safeguards a criminal case as
being adversary in nature, this concept is not violated by encouraging a maxi-
mum communication between the adversaries, with protective participation by
the trial judge-all with a view to preventing the withholding of evidence, in-
formation, and plans which might expedite the truth-finding process and avert a
"trial by ambush."' 7
Also embraced within the Standards Relating to Discovery and Procedure
Before Trial is a suggested novel or "revolutionary" pretrial procedure called
"Omnibus Hearing," so named because it is intended to serve as an all-purpose
hearing, dealing with many matters in a simplified, systematic way. A significant
feature is the use of a check-list to save time in court and to provide maximum
assurance that all conceivable issues are exposed and dealt with early in the
process, and without many of the formalities and time-wasting procedures which
customarily accompany the raising and disposition of issues; moreover, the
issues are raised at one time, instead of being strung out over the pretrial period."
The Omnibus Hearing technique has been given extensive experimentation
for approximately the past five years in the Southern District of California and
the Western District of Texas.' United States District Judge Adrian A. Spears,
of San Antonio, Texas, reports: "The Omnibus Hearing Project has so revolu-
tionized the handling of criminal cases in this district that we would be lost
without it. I know of no problem now being experienced in other courts that
cannot be solved by the use of Omnibus."2
Further, Judge Spears characterized the Omnibus Hearing as "... a tech-
nique that I think holds the key to the entire concept of a fair, impartial and
speedy trial." Other benefits he enumerated include the "very substantial"
saving of time; that the tactics of opposing counsel have changed materially-
for the better--since the conferences of counsel are freely pursued, and there is
usually full disclosure by both sides; that "the oral motion practice is much
more satisfactory, and less demanding, because of the cooperation between
counsel, thus eliminating frivolous contentions. If written motions and briefs
are desired, the Court retains the right to require them in particular cases; and
the reaction of the criminal bar has been very favorable."2 1 Most significantly,
Judge Spears reported on October 15, 1971, that ".... each judge in this district
has one of the highest weighted criminal caseloads in the Nation, yet the median
time between indictment and disposition is only 1.8 months. This can be at-
tributed in large measure to the use of Omnibus."2 2
The Standards Relating to Post-Conviction Remedies come to grips with
a problem which has become a staggering burden to our judges, our prosecutors,
our attorneys general, and our taxpayers.

17 49 F.R.D. 347, 438-73 (1969).

18 APPROVED DRAFT, 1970, ABA STANDARDS RELATING TO DISCOVERY AND PROCEDURE
BEFORE TRIAL, Introduction, pp. 8-9.
19 Id. at 9; see also 49 F.R.D. 347, 438-73 (1969).
20 From a letter dated June 14, 1971, to ABA Crime Prevention and Control Project, by
judge Spears.
21 Id.
22 Letter to Chief Judge Wesley E. Brown, U.S. District Court, Kansas City, Kansas.
[Vol. 47: 429] STANDARDS FOR CRIMINAL JUSTICE

Our courts have been literally flooded in recent years by appeals of con-
victed prisoners under such writs as habeas corpus, alleging some injustice or
unconstitutionality with the original proceedings. The lay public is often con-
fused at the seemingly endless delays of justice when they witness appeal after
appeal in the same case. These Standards provide relief for legitimate questions
not originally adjudicated with adequate finality. But they simplify the system,
eliminate frivolous or false allegations, provide controls against abuse of the
remedy, and are designed to expedite the case to final disposition so that justice
will be done.
The Standards Relating to Sentencing Alternatives and Procedures deal
extensively with one of the most complex and difficult problems in the admin-
istration of criminal justice-the sentencing function. The sentencing decision
embodies concern for the public interest and safety, as well as the future pre-
dictable behavior of the particular offender. Yet the subject of sentencing has
not received attention and study commensurate with its importance. There are
demonstrably severe and unjustified disparities in sentences imposed in com-
parable situations.
The sentencing Standards are innovative in many respects. They adopt a
liberal approach in their emphasis upon ameliorating the harshness and rigidity
of a system of criminal justice which has relied too much upon the palliative of
imprisonment in dealing with offenders and has failed to provide sufficiently
flexible alternative methods of dealing with individual sentencing situations.
They borrow from and refine some concepts of the American Law Institute's
Model Penal Code" and the Model Sentencing Act.2
The Standards recommend that lay juries should have no part in the
sentencing decision, rather, this should be the judge's function. They do not deal
with the question of retaining the death penalty as a sentencing alternative or
whether the jury should participate in its imposition.
These Standards also conclude that authorized sentences are in most cases
higher than are needed in the majority of cases in order to adequately protect
the public interests. At the same time, they recognize there are certain types of
offenders who present special problems of control and should be subject to sub-
stantially longer sentences.
Each sentence should seek to achieve the goal of correction so as to avoid
recidivism. Programs which minimize the dislocation of the offender from the
community and concentrate upon readjusting him to it offer the best hope of
accomplishing this objective. For this reason, the sentence should limit custody,
confinement or other penalty to the minimum consistent with the protection of
the public interest and the circumstances of the offender. Within these principles,
five basic types of sentences should be available to the courts: probation (with
limited exceptions such as for murder or treason), partial confinement, total
confinement, custody in a special facility, and fine.
Finally, the Standards on sentencing call for supporting services to provide
the court with complete information on the background of the offender prior to
23 Published by American Law Institute, May 4, 1962.
24 Published by Advisory Council of Judges of the National Council on Crime and Delin-
quency, 1963.
 NOTRE DAME LAWYER [February, 1972]

sentencing. Such presentence reports should be disclosed to counsel to assure

accuracy and to provide opportunity to explain derogatory information and
offer submissions on facts relevant to the sentencing decision.
Important as all of the Standards may be, their potential for helping the
administration of criminal justice is directly proportionate to the extent and
completeness of their implementation. Coordinating this effort has been by far
the major program of the ABA Section of Criminal Law, functioning through
its Committee on Implementation of Standards for the Administration of
Criminal Justice, chaired by the writer since its inception in 1968.25 The imple-
mentation process has proven to be an excellent catalyst and opportunity as
well for members of the bench and bar to become involved and work through
the Association, state and local bar groups, legislatures, and their communities-
to provide leadership which has been traditional for lawyers in confronting social
challenges.
Tremendous progress has been made, thanks to the wise planning and
judicious policies adopted by the Section. Wisely, the Section sought and was
granted the coordinating responsibility. Otherwise, like so many other valuable
studies, the implementation might have been permitted to drift and pick its own
course. Additionally, the Section realized that implementation would be a costly
venture requiring considerable outside funding support of a continuing nature
over a long period.
Overall coordination of the Section's implementation effort has been con-
tinually handled by Louis B. Nichols who was Chairman of the Section during
the 1968-69 Association year. He and his predecessor, William F. Walsh,
initiated the request which resulted in vesting the responsibility in the Section,
and Mr. Nichols thereafter personally raised more than $100,000 in outside
26
funding to launch the planning and pilot undertaking.
Judiciously, the Section decided to "make haste slowly" by first selecting
three representative "pilot" states to provide planning and feedback experience.
This was essential, for implementation throughout all jurisdictions was not a
simple matter of each state adopting uniform legislation or court rules. Basic
differences exist from state to state as to whether their criminal procedure is
dependent on legislative fiat or whether the courts have rule-making powers.
Constitutional differences and other variations based on custom, tradition and
practice exist. Thus, the pilot states selected were Arizona, predominantly a
"Rule" state; Texas, exclusively "statutory"; and Florida, a combination of
both.2"
Next, the Section determined that an essential "must" step for each state
was to take careful inventory of where it currently stood vis-4-vis the Standards.
Since many of the Standards were a restatement of existing sound procedures in
numerous jurisdictions, this so-called "Comparative Analysis" would provide the
state with an accurate blueprint of how many Standards were already im-

25 Report of Section of Criminal Law, 94 ABA Reports 889-90 (1969). See also sub-
sequent Annual Reports of Section Chairmen, reprints of which are available from Staff Di-
rector H. Lynn Edwards, 1705 DeSales Street, N.W., Washington, D.C. 20036.
26 Id.
27 Id.
[Vol. -7: 429] STANDARDS FOR CRIMINAL JUSTICE

plemented, wholly or partially-and specifically wherein the state exceeded or

fell short.
Through funding generously supplied by the American Bar Endowment the
Section has been able to provide substantial money to individual states as match-
ing portions to enable them to obtain necessary action grants from their State
Criminal Justice Planning Agency which administers block monies under the
"Safe Streets Act" and the Law Enforcement Assistance Administration
(LEAA). Implementation of the Standards is directly related to comprehensive
law enforcement planning envisioned by the LEAA program.
At least 25 states have taken advantage of this help from the Section and
have either completed or are working on their Comparative Analyses.28 In
accomplishing this vital phase, valuable assistance has been obtained from law
schools, law students, law professors, state bar associations, young lawyers, judges,
and court administrators.
Another major achievement of the implementation effort Ras been the
nationwide mobilization of a network of liaison and working relationships with
powerful organizations representing the bench, bar, law enforcement, criminal
justice, legislative staff, community and other lay interests at federal, state, and
local levels. These have been invaluable in organizing and spearheading a
massive orientation and educational campaign, so necessary to translate the
Standards into meaningful, practical concepts.
Included among these groups are the National District Attorneys Asso-
ciation, National College of District Attorneys, National Association of Attorneys
General, National Governors' Conference, National Legislative Conference,
Council of State Governments, National Legal Aid and Defenders Association,
National Association of Defense Lawyers, National Conference of State Trial
Judges, National College of State Trial Judges, Appellate Judges' Conference,
Conference of Chief Justices, many State Judicial Conferences, the Conference
of State Bar Presidents, and the Federal Judicial Center.
Through these teamwork arrangements, the Section has joined with the
program planning committees in about twelve states to help structure two- and
three-day seminars on the Standards at their annual statewide judicial confer-
ences. These workshops, to which prosecutors, defense lawyers, and law en-
forcement personnel are invited, have worked wonders in highlighting the
Standards and sparking statewide implementation action. 9
The Section is cooperating with the Appellate Judges' Conference in plan-
ning an intensive national four-day Institute on the Standards, scheduled for
February 11-14, 1972, at the New Law Center, Louisiana State University,
Baton Rouge, Louisiana. Participants will include approximately 250 members
of the highest and intermediate appellate courts from fifty states. Patterned
after the National Conference on the Judiciary, it will help to broaden and
accelerate a trend already inspired by implementation seminars in many states,

28 See ANNUAL REPORT OF CHAIRMAN, ABA SECTION OF CRIMINAL LAW, 1970-71. For
information as to how a state can avail itself of this and other implementation assistance, com-
municate with Mr. H. Lynn Edwards, Staff Director, Section of Criminal Law, American Bar
Association, 1705 DeSales Street, N.W., Washington, D.C. 20036.
29 Id.
 NOTRE DAME LAWYER [February, 1972]

whereby the Standards are being increasingly implemented by being favorably

cited in appellate court opinions.
The National Conference on the Judiciary at Williamsburg, Virginia, in
March, 1971, adopted a Consensus Statement which endorsed the Standards,
as follows:

The foregoing statements, paraphrasing some of the thoughts expressed by

the President and the Chief Justice of the United States, indicate an urgent
need for a fundamental re-examination of our judicial system with a view
to making it better able to accomplish the goals of criminal justice.

Such re-examination will be aided by the Standards of Criminal Justice

promulgated by the American Bar Association. Each state should thought-
fully consider them with a view to adopting them in principle by legisla-
tion or rule of court. These carefully prepared standards illuminate many
of the concepts hereafter mentioned.3 0

Many other instances of the Section's implementation activity could be

described. For example, the Standards have been made available and their
coverage explained to the key staff and legislative personnel from 25 to 30 states
which are currently engaged in or planning the updating or codifying of their
substantive and procedural criminal laws.3" This will enable them to consider
the suggested approach of the Standards to the problems. Still other states have
set up special committees of their judicial conference or their bar association to
submit recommended modernization of their criminal procedures, and the Sec-
tion has lent them every possible assistance.
The Section is preparing a model set of court rules to help implement the
Standards in states having rule-making powers.3 2 It is maintaining a running
compilation of appellate court opinions which cite the Standards."3 In 1972,
after the last contemplated Standard is finally approved, the Section will publish
all 17 Standards in a single volume, which will contain all "black letter" Stan-
dards recited verbatim, supported by a carefully abridged commentary, plus a
much-needed index, and a cross-reference to the valuable unabridged commen-
S4
tary.
The Section is also attempting to raise funding to support urgently needed
research to measure the impact and evaluate the practical benefits of implemen-
tation in terms of strengthening and improving the administration of criminal

30 Consensus of the National Conference on the Judiciary, consisting of Findings and

Conclusions of the Conference held at Williamsburg, Virginia, March 11-14, 1971, Tom C.
Clark, National Chairman.
31 The first Criminal Code Revision Seminar was held June 23-27, 1969, at the Univer-
sity of Michigan Law School. Ann Arbor, co-sponsored by the Council of State Governments,
The National Legislative Conference, and The Institute of Continuing Legal Education. The
Section of Criminal Law supplied experts for panels on selected ABA Standards for Criminal
Justice, in addition to complimentary sets of the Standards. Similar cooperation was extended
at the second Seminar, held at Brownsville, Texas, March 22-26, 1971.
32 Project Director for this undertaking is Kane Professor of Law Paul E. Wilson, Uni-
versity of Kansas School of Law, Lawrence, Kansas 66044.
33 This is being done for the Section of Criminal Law as a public service by West Publish-
ing Company, St. Paul, Minnesota.
34 Planning for this is being jointly handled by the ABA Special Committee on Standards
for the Administration of Criminal Justice and the Section of Criminal Law.
[Vol. 47: 429] STANDARDS FOR CRIMINAL JUSTICE

justice. This is essential to gauge their effectiveness and also plan for future
adjustments and extensions.
Too, the Section anticipates a future need for carefully drafted model legis-
lation which might be made available to states to implement certain portions
of the Standards.' 5
An ever-enlarging body of educational material is being accumulated by
the Section to help answer the huge volume of inquiries regarding the Stan-
dards. Already, reprints of lectures, law review articles, speeches, and forms
are available to assist those jurisdictions which are just beginning to awaken to
the great potential of this work."6
In summing up, it is my hope that all students and all lawyers will join
in this crusade to secure the adoption of the Standards of Criminal Justice.
There is a vast treasure in them that must be utilized before we are able to im-
prove our criminal justice system. To those who are presently uninformed as
to the Standards or inactive as to their implementation, let me say that the hour
is late. Unless action is taken before long, a concerned citizenry may take
matters into their own hands."

35 See ANNUAL REPORT OF TiE CHAiRMAN OF THE SECTrION OF CRIMINAL LAW, 1970-71.
36 For copies of available materials, communicate with H. Lynn Edwards, Staff Director,
American Bar Association Section of Criminal Law, 1705 DeSales Street, N.W., Washington,
D.C. 20036.
37 Members of the bench and bar and law students who wish to become actively involved
in implementing the ABA Standards for Criminal justice and also kept regularly informed
are invited to join the ABA Section of Criminal Law. Applications for membership, as well
as sets of the Standards, are available by writing to the Section's Staff Director, H. Lynn
Edwards, 1705 DeSales Street, N.W., Washington, D.C. 20036.